If Kenneth Smith's trial was today, he wouldn't be executed

Judge overrode jury's vote for life, a practice Alabama has since outlawed.

The jury in Kenneth Smith’s murder trial voted 11 to one for life, but unless something extraordinary occurs, the state of Alabama will still put Kenneth to death later today.

The reason behind his death sentence is a peculiar practice that Alabama lawmakers voted to outlaw in 2017.

Commonly referred to as “judicial override,” state law allowed a judge to disregard a jury recommendation for a life sentence and instead impose death in capital murder convictions. Alabama was the last state to abolish judicial override, but state lawmakers failed to make the abolishment retroactive.

That means the 31 people on Alabama’s death row because a judge sent them there against the wishes of the jury, including Kenneth Smith, will still be executed. If their trials occurred today, the judge would not have the authority to disregard the jury’s votes for life. This population accounts for close to 20 percent of death row.

I called N. Pride Tompkins, the now-retired judge who dismissed the jury’s vote to spare Kenneth’s life and imposed death instead. He told me that he doesn’t comment on past cases because it wouldn’t be “proper,” but in 2004 he talked to a reporter with TimesDaily about this decision and seemed to question whether juries are up to the task of sentencing people in murder cases.

"Some people serving on juries, especially on these cases, have never been in court before, and they don't want the responsibility of sentencing someone to death,'' he said in 2004.

In addition to Kenneth Smith’s case, Tompkins tossed out another jury recommendation for life in a 1998 murder trial and imposed death.

"I thought they deserved the death penalty the way the crimes were,'' he told the TimesDaily.

Representative Chris England hopes to extend relief to the men on death row because of judicial override. He pre-filed a bill for the upcoming legislative session that would allow them to petition a judge to be resentenced. England, a former prosecutor and son of retired longtime Alabama Supreme Court Judge John England, said giving these men a chance to be resentenced only makes sense, because the state already concluded that judicial override was wrong.

“If we can recognize that maybe judges shouldn’t have unilateral power to sentence, the next logical step is that we should also afford relief to those folks that have been sentenced that way,” he told Alabama Political Reporter.

Retired Senator Hank Sanders tried to pass bills to abolish judicial override for 11 years. Sanders, a Black Democrat from Selma and tireless opponent of the death penalty, told me that reforms to the death penalty are “seen as a no-no” by Alabama lawmakers, “unless you’re talking about making it more aggressive.”

(Retired Sen. Hank Sanders, speaking at a rally opposing Alabama’s execution by nitrogen hypoxia.)

It wasn’t until a white Republican took interest in the issue that abolishing judicial override gained steam. Dick Brewbaker, a white Republican from Montgomery County, was bothered by the political implications of judicial override, that elected judges would be more inclined to do it so they’d look tough on crime.

Brewbaker had seen data that showed the number of overrides sending people to death row doubled in election years. In 2008, an election year, 30 percent of new death sentences were imposed by judge override, compared to 7 percent in 1997, a non-election year.

Brewbaker approached Senator Sanders and asked if he could take a crack at the repeal.

Sanders gave him his blessing. The issue was the same, only the messenger was different. With Brewbaker as the sponsor, the bill easily passed and Alabama became the last state to do away with judicial override in 2017.

“The sad part is, this showed how little we listen to each other,” Brewbaker told me.

Much of the coverage connected to Kenneth Smith’s execution has been focused on the new method of execution by nitrogen hypoxia and serious concerns about its safety. Still, Alabama has pressed on, and no one knows what will happen when they strap the gas mask to Kenneth’s face later today, and try to suffocate him.

But the issue of judicial override will continue to haunt the state. Equal Justice Initiative (EJI) fought for years to end judicial override in Alabama and says since 1976, judges overrode jury verdicts in 112 cases. Of the states that allow the death penalty, Alabama for years was the only one where judges routinely overrode jury sentences for life to instead impose a death sentence.

EJI has argued Alabama’s death penalty scheme is unconstitutional. A unanimous jury verdict is not required for a death sentence, prosecutors in Alabama only need ten jurors to vote for death. Eleven jurors in Kenneth Smith’s trial wanted him sentenced to life without parole, but the judge exercised his autocratic power and disregarded that recommendation.

In a thoughtful column this week, editor Bill Britt argued that Kenneth Smith’s execution “raises profound questions about justice, morality and the evolution of legal standards. Alabama, having recognized the fallacy of judicial override, now faces a critical choice. Will it adhere to a newfound understanding of justice, or will it proceed with an execution that contradicts its own legal principles?”

I think we already know the answer.

Kenneth Smith was convicted in a 1988 murder-for-hire of Elizabeth Sennett in rural Colbert County. Prosecutors said the victim’s husband paid Kenneth and another man $1000 to kill Mrs. Sennett. Her husband later killed himself.

The other man convicted in the crime, John Forrest Parker, was executed by lethal injection in 2010. Parker was 19 at the time of the crime, Kenneth Smith was 22.

In reading through old media coverage of the case, I came across a sad fact.

Parker’s judge also overrode a jury’s vote for a life sentence, and sentenced him to death anyway.